United States v. Salvagno

456 F.Supp.3d 420

UNITED STATES of America, Plaintiff,

v.Alexander SALVAGNO, Defendant.

5:02-CR-51 (LEK)

United States District Court, N.D. New York.

Signed April 23, 2020

Order Denying Reconsideration June 22, 2020

Elizabeth C. Coombe, Emily C. Powers, Office of United States Attorney, Albany, NY, for Plaintiff.

MEMORANDUM-DECISION AND ORDER

Lawrence E. Kahn, Senior U.S. District Judge

I. INTRODUCTION

Before the Court is defendant Alexander Salvagno's letter motion requesting a reduction of his sentence under 18 § U.S.C. 3582(c)(1)(A) in light of his high risk of contracting a severe or deadly case of COVID-19. Dkt. No. 1162-1 ("Letter Motion"). Defendant suffers from hypertension, for which he takes an angiotensin-converting enzyme ("ACE") inhibitor, Lisinopril. He is serving his sentence at FCI Danbury, which has had particularly serious problems controlling the spread of COVID-19. The government opposes his Letter Motion, as communicated in a response letter. Dkt. No. 1163 ("Response"). Defendant submitted a letter in reply. Dkt. No. 1164-1 ("Reply"). For the reasons described below, Defendant's Letter Motion is granted.

II. BACKGROUND

A. Defendant's Sentence and the Present Letter Motion

Alexander Salvagno was sentenced to 25 years in prison in 2005 for a variety of offenses, including Racketeering Conspiracy, violations of the Clean Air Act, and Income Tax Evasion. See Dkt. No. 405. Defendant coordinated a vast asbestos abatement fraud scheme that put both his employees and the public at risk of contracting serious asbestos-related illnesses, such as lung cancer, mesothelioma, and asbestosis. See Dkt. No. 1140 at ¶¶ 5–20, 57–60 ("Presentence Investigation Report"). His current projected release date is July 30, 2026.

On January 25, 2019, Defendant requested compassionate release under 18 § U.S.C. 3582(c)(1)(A) based on concerns largely unrelated to those in the present Letter Motion. See Dkt. No. 1119-1 ("January 25, 2019 Motion"). Specifically, according to the January 25, 2019 Motion, Defendant's wife had died in 2014, leaving his three young children to an uncertain fate. Id. at 6–11. On June 12, 2019, the Court denied that motion for compassionate release. Dkt. No. 1143 ("June 12, 2019 Order"). On June 26, 2019, Defendant filed a notice of Appeal, Dkt. No. 1144, and motion for reconsideration of the Court's June 12, 2019 Order., Dkt. No. 1146 ("Motion for Reconsideration"). On July 1, 2019, the Court permitted briefing on Defendant's Motion for Reconsideration, pending appeal of the Court's June 12, 2019 Order to the Second Circuit. Dkt. No. 1148. That Motion for Reconsideration is currently pending.

On April 6, 2020, Defendant submitted the present Letter Motion, ostensibly to supplement his prior arguments in support of his Motion for Reconsideration. In the Letter Motion, Defendant recasts the concerns presented in the January 25, 2019 Motion regarding the fate of his children as especially exigent in light of the evolving pandemic. Defendant asserts, for instance, that his son is at risk of contracting COVID-19 from individuals in his foster residence. Letter Motion at 1. But the Letter Motion also presents the separate, new argument that Defendant should be released in light of his hypertension and the rapid spread of COVID-19 within FCI Danbury. Id. at 1–3.

In its Response to this new argument, the Government makes several counter-arguments. First, the Government maintains that Defendant has failed to exhaust administrative remedies as required by 18 § U.S.C. 3582(c)(1)(A) with respect to this new claim for compassionate release. Resp. at 2. Second, the Government argues that Defendant has not presented an "extraordinary and compelling reason" to support release, see § 3582(c)(1)(A)(i), as neither the general background circumstances of the pandemic nor the conditions at FCI Danbury fulfill that requirement. Id. Relatedly, the Government also casts doubt on the veracity of Defendant's representations about his personal health, as he did not submit medical records with his Letter Motion. Id. at 2–3.

In his Reply, Defendant addresses each of these arguments. First, he frames his Letter Motion not as a new motion for compassionate release to which exhaustion requirements might newly attach, but as a supplemental motion requesting that the Court address in an expedited fashion his pending Motion for Reconsideration, which pertains to a prior and fully exhausted motion for compassionate release—the January 25, 2019 Motion. Reply at 2–3. Additionally, Defendant presents recent cases in this Circuit both excusing exhaustion and granting compassionate release under what he argues are analogous circumstances. Id. at 3–4. Since his initial Letter Motion, Defendant has submitted medical records substantiating his representations that he suffers from hypertension and that he has been prescribed Lisinopril to treat this condition. See Dkt. No. 1160-2.

III. LEGAL STANDARD

As amended by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), 18 U.S.C. § 3582(c)(1)(A) authorizes courts to modify terms of imprisonment:

upon motion of the Director of the Bureau of Prisons [BOP], or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, after considering the factors set forth in [ 18 U.S.C. § 3553(a) ] to the extent that they are applicable, if it finds that—

(i) extraordinary and compelling reasons warrant such a reduction

***

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission....

§ 3582(c)(1)(A).

Section 1B1.13 of the United States Sentencing Guidelines contains the only policy statement issued by the Sentencing Commission pertaining to compassionate release. This policy statement, which has not been amended since the passage of the First Step Act, states, in relevant part:

Upon motion of the Director of the [BOP] under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that—

(1) (A) extraordinary and compelling reasons warrant the reduction;

...

(2) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g) ; and

(3) the reduction is consistent with this policy statement.

§ 1B1.13.

Section 1B1.13 provides that extraordinary and compelling reasons exist in the following situations:

(A) Medical Condition of the defendant.—

(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(ii) The defendant is—

(I) suffering from a serious physical or medical condition,

(II) suffering from a serious functional or cognitive impairment, or

(III) experiencing deteriorating physical or mental health because of the aging process,

that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.

(B) Age of the defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

(C) Family Circumstances.— (i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.

(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.

(D) Other Reasons.—As determined by the Director of the [BOP], there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).

§ 1B1.13 cmt. n.1.

IV. DISCUSSION

A. Exhaustion

As indicated above, the Court must first determine whether Defendant has exhausted his administrative remedies as required by § U.S.C. 3582(c)(1)(A), or, if not, whether the Court may waive the exhaustion requirement in this case. The Court finds that Defendant has failed to exhaust his remedies but that the statutory exhaustion requirement should be waived.

Defendant contends that the Letter Motion serves as a supplement to his pending Motion for Reconsideration, in providing reasons for the Court to expedite its decision on Defendant's Motion for Reconsideration. Reply at 2–3. That Motion for Reconsideration in turn pertains to a prior denial of a compassionate relief request that had been properly exhausted. See June 12, 2019 Order at 1–2. His prior exhaustion, on the Defendant's reasoning, should carry over to all bases for compassionate release discussed in his Letter Motion, including his request for compassionate release on the basis of his personal medical circumstances, Id. at 2–3. But Defendant's January 25, 2019 Motion did not mention his health conditions as a ground for release; and the BOP accordingly never reviewed Defendant's health issues as a basis for compassionate release, even in a pre-pandemic context. Accordingly, absent waiver, Defendant's request based on his personal health concerns requires a second round of exhaustion, which has not occurred here. Thus, finding that Defendant has not exhausted this new request, the...